U.S. Supreme Court eyes where protesters can take stand

By Robert Barnes The Washington Post Feb. 16, 2014
WASHINGTON — Supreme Court justices found themselves a bit spatially challenged last month, when they heard oral arguments about a Massachusetts law that keeps people 35 feet from the entrance of an abortion clinic.
From here to the back of the courtroom, Justice Elena Kagan asserted. No, more like two car lengths, offered Justice Sonia Sotomayor. Far enough that one would have to shout to be heard by someone entering, Justice Antonin Scalia said.
But there is no mystery about how far a demonstrator may advance when trying to make a point at the Supreme Court.
It is beyond the justices’ grand courtroom, past the Great Hall, down the court’s iconic front steps, across the 252-feet by 98-feet oval marble plaza, and down eight more steps to the sidewalk along First Street.
In other words, the whole city block on which the Supreme Court sits is off-limits to protesters, save for the sidewalks that ring it. It has been that way, more or less, since 1949, when Congress decreed:
“It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
But the restrictions on protests at the Supreme Court are under legal attack all over the city, following a decision last June by a federal judge that the 1949 statute went too far.
“It cannot possibly be consistent with the First Amendment for the government to so broadly prohibit expression in virtually any form in front of a courthouse, even the Supreme Court,” U.S. District Judge Beryl Howell wrote in a 68-page opinion.
Washington attorney Jeffrey Light has challenged the restrictions on behalf of Occupy D.C. protesters who were arrested at the Supreme Court and has brought a lawsuit against the regulation prohibiting protests that Chief Justice John Roberts approved after Howell’s decision.
But Light, who is affiliated with The Rutherford Institute, said that those are on hold while the government appeals Howell’s ruling to the U.S. Court of Appeals for the D.C. Circuit. Howell threw out the conviction of Harold Hodge of southern Maryland, who was arrested in January 2011 for standing on the plaza wearing a 3-by-2 foot sign that said, “The U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People.”
The government’s appeal, filed on behalf of Supreme Court Marshal Pamela Talkin and D.C. U.S. Attorney Ronald Machen, argues that it is logical to prohibit demonstrations at the Supreme Court in a way that might violate the First Amendment when applied to other government buildings.
“It is well established that the government has a legitimate interest in limiting picketing or demonstrating near courthouses,” Assistant Attorney General Stuart Delery writes.
The Supreme Court noted such arguments in 1983, in deciding a case brought by a protester named Mary Grace. She was arrested in 1980 on the sidewalk in front of the court for carrying a sign that reprinted the words of the First Amendment.
The justices ruled for Grace, saying that protesters could not be banned from a traditional public forum such as a sidewalk, even if it was in front of the Supreme Court.
But they did not address the subject of protesters on the court’s grounds.